Opinion
January 31, 1992
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Doerr, Boomer, Pine and Balio, JJ.
Judgment unanimously reversed on the law and petition granted, in accordance with the following Memorandum: After a Tier III disciplinary proceeding, petitioner was found guilty of assault for attacking another inmate. The evidence relied upon was the written misbehavior report of a correction officer, the verbal testimony of the officer, and information from a confidential source purportedly confirming the officer's allegations. For the reasons that follow, we conclude that the determination was not based upon substantial evidence and must be annulled.
We first note that this proceeding should have been transferred to this court because petitioner raised the issue of whether the disposition was supported by substantial evidence (CPLR 7804 [g]). It is settled that substantial evidence in a CPLR article 78 proceeding can consist entirely of hearsay, and a written misbehavior report alone may serve as the evidentiary basis for a prison disciplinary determination (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). In Vega, however, the misbehavior reports described with specificity an incident witnessed by the author and were endorsed or initialled by other correction officers. Here, it is apparent from the misbehavior report that the author did not witness the incident he described, but reported merely the results of his investigation. The misbehavior report "did not merely constitute a hearsay account of the incident, but recited hearsay or double hearsay accounts" (Matter of Carter v. Kelly, 159 A.D.2d 1006, 1007) and thus did not constitute substantial evidence of the charges against petitioner. Because the correction officer provided no clarification of the misbehavior report in his oral testimony, that testimony likewise failed to constitute substantial evidence.
Additionally, "the testimony of a correction officer relating the hearsay accusations of anonymous inmate informants does not constitute substantial evidence unless the record before the Hearing Officer contains material enabling him to assess the credibility of the informants and to conclude that their information is reliable" (Matter of Carter v. Kelly, supra, at 1008; see also, Matter of Nelson v. Coughlin, 148 A.D.2d 779, 780; Matter of Wanton v. Coughlin, 117 A.D.2d 376; Matter of Harris v Coughlin, 116 A.D.2d 896, 897, lv denied 67 N.Y.2d 610, 1047, appeal withdrawn 69 N.Y.2d 743). Here, although the Hearing Officer stated that he had independently assessed the informant's credibility, the record fails to support that statement. The hearsay accusations of the confidential inmate witness should have been rejected.